The Settlement Shuffle

Aggregates Manager Staff

May 1, 2009

While new MSHA procedures provide more opportunity to discuss hotly contested issues, they create fewer options for mediation.

by Christa Lee Rock

How time flies. Just over a year ago, my colleague, Mark Savit, appeared on these pages to inform the mining public of new changes to conference procedures at the Mine Safety and Health Administration (MSHA). Conference procedures afford operators and contractors a chance to sit down at the same table to discuss citations and orders early in the process. The goal is to avoid litigation – which is costly for both sides – so that both MSHA and the operators can get back to focusing on safety.

Last year, the big change in conference procedures came in the form of an MSHA edict declaring that conferences would be reserved only for citations alleging high negligence or unwarrantable failure (Section 104(d) citations or orders). This year, access to the conference process has been expanded, but the timing has been deferred. Now, all conferences will take place only after “civil penalties are proposed and timely contested” (Program Information Bulletin No. P03-05, issued March 27, 2009). This means that an operator looking to avoid litigation through the conference procedures must do all of the following: contest the citation, file a written request for a conference within 10 days, wait (usually four to six weeks), receive the proposed penalty assessment, contest the penalty, and then have a conference within 90 days. Whew. That’s a pretty far hike up the hill toward litigation for a procedure intended to avoid litigation.

To its credit, MSHA has some good reasons for deferring conferences until after penalties have been assessed. After all, mining is a business. Operators want to know how much money is on the table before they start racking up legal fees to litigate citations. The combined discussion also allows the parties to have more meaningful discussions and to resolve contested violations and their associated civil penalties at the same time. More importantly, it gives the parties time to work things out. The new procedure spares operators the expense of having to file a formal answer to the petition for assessment of a civil penalty because, once conference procedures have been initiated, the Conference and Litigation Representative (CLR) gets a 90-day extension of time to file the petition. Everyone gets a reprieve.

What’s more, the new procedures also allow some flexibility on the most hotly contested issues or those that operators need to resolve most quickly, such as pattern of violation (POV) orders. CLRs now have discretion to conduct “pre-penalty safety and health conferences” involving POVs, significant and substantial (S&S) citations issued during a POV-program assessment period, statutory violations, flagrant violations, and accident-related violations. However, we have already had a case involving a non-S&S citation that appears to be clearly erroneous on its facts, but which would require a very difficult, if not impossible, abatement. When the operator explained this to the CLR and asked for a conference, he was summarily referred to the new procedure. Waiting for the penalty to be issued would have taken him long past the abatement date and now requires that the operator take legal action to formally contest the citation – action and expense that could have been avoided if the conference could be held right after the citation was issued.

But there’s also an unseemly side to the new procedures. MSHA candidly admits that the changes resulted, in part, from the overwhelming new push for mining enforcement since passage of the MINER Act of 2006. MSHA has simply been giving out more citations than it can handle. Between 2005 and 2008, the number of citations contested annually has increased from 7,000 to more than 42,000. That means fewer CLRs are available to settle citations, or at least break up the bigger fights before they enter the barroom brawl of litigation. A greater number of citations are being funneled through an ever-narrowing mediation process.

As a result, more and more operators with worthy grounds for challenging or settling citations may be tempted just to write a check to MSHA to avoid the hassle. Others will write the check to their lawyers. Still more will be booted from consideration for the conference procedures because they missed one of the many deadlines built into the new process: the deadline to contest the citation, the deadline to contest the penalty, or the 10-day deadline to file a written conference request (see 30 C.F.R. § 100.6(b)).

It’s also interesting to note that the new procedures are actually inconsistent with current regulations at 30 C.F.R. § 100.6(d). Section (d) of the regulation states that after a conference, or upon the expiration of the conference request period, then abated citations and settlement results will be sent to the Office of Assessments to put a dollar figure on the final penalty. Under the new procedures, penalties will already be assessed before the conference. If the parties settle at the conference, the CLR will now have full authority to file the Petition for Assessment of Civil Penalty and Decision and Order Approving Settlement directly with the Commission. There is not yet word on whether MSHA will conform its regulations to this new practice.

If the regulations remain inconsistent with practice, it won’t be the first time. After all, the strong language of 30 C.F.R. § 100.6(a) suggests that everyone gets a settlement conference if they really want one. (See for yourself: “All parties shall be afforded the opportunity to review with MSHA each citation and order issued during an inspection.”) But where one MSHA hand giveth, the other taketh away. The regulation’s second sentence states that, even where a regulated party gets an “opportunity” to review its citation, MSHA has “sole discretion” to actually grant a conference. As we know from these new procedures, fewer and fewer operators will actually get to enjoy that “opportunity.”

The good news is that nothing in the new rules prevents you from reaching creative settlements on your own. These include contacting the field office to discuss erroneous citations or orders, or working out settlements with district managers, their staff, and the Department of Labor attorneys. For big-ticket items such as citations and orders that threaten closure, costly or impossible abatement demands, or risk of criminal enforcement, you should still call your lawyer.

Christa Lee Rock is an associate in Patton Boggs LLP’s Denver office. She can be reached at 303-894-6141 or at crock@pattonboggs.com.

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A greater number of citations are being funneled through an ever-narrowing mediation process.